339 F.

2d 206

Luis C. SANTOS, Appellant,

v.
AMERICAN EXPORT LINES, INC., Appellee.
No. 240, Docket 29157.

United States Court of Appeals Second Circuit.

Argued Dec. 10, 1964.
Decided Dec. 11, 1964.

Sheldon Tabak, New York City (T. Lawrence Tabak, of counsel), New
York City, for appellant.
Haight, Gardner, Poor & Havens, New York City (Stephen K. Carr, M. E.
DeOrchis, of counsel), New York City, for appellee.
Before WATERMAN, MOORE and KAUFMAN, Circuit Judges.
PER CURIAM.

Appellant, a merchant seaman, sought to recover for personal injuries he

suffered while employed on the S.S. Independence of the defendant's fleet. The
original complaint contained claims for recovery arising from defendant's
alleged negligence and from the alleged unseaworthiness of the vessel. The
case was tried to a jury, during trial the negligence claim was withdrawn, and
the sole question submitted to the jury was that of alleged unseaworthiness
based upon the seaman's claim that he slipped and fell from a freshly painted
ladder which was wet from dripping water. The jury returned a verdict for
defendant.

On appeal plaintiff presents two claims of trial error that are urged as grounds
for a remand for a new trial. First, plaintiff claims that the court below erred in
permitting one Captain Zimmerman, the defendant's deck department head at
the time of trial who had served continuously on board the 'Independence' from
seven months prior to the accident to four years afterward (but who was not on
board during the 20 day trip when this accident occurred) to testify as to the
construction of the ladder and the type and properties of the paint used on it.

Plaintiff's second claim arises from his exception to the court's refusal to charge
that the plaintiff did not assume the risks of his employment. He asserts he was
prejudiced by this refusal.

When the case went to the jury the only liability issue for resolution was that of
the alleged unseaworthiness of the ladder. The challenged testimony was
properly admitted on that issue and the trial judge's refusal to give the nonassumption of risk charge as requested was within his discretion. The charge to
the jury was fair and the jury was accurately instructed as to the law governing
the defendant's liability. Furthermore, when the general verdict for the
defendant was returned the foreman of the jury voluntarily stated that:

'The verdict is that the jury has come to unanimous decision that the ladder was
seaworthy and finds in favor of the defendant * * *'

The judgment below for the defendant is affirmed.